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REPORT FROM A MEETING OF THE NORDIC HUMAN RIGHTS INSTITUTES ON HUMAN RIGHTS REFORM IN THE UNITED NATIONS

1. The five Nordic Human Rights Institutes have adopted the present report following a meeting on reform related to human rights in the United Nations. The meeting was held in Lund on 17 and 18 May 2005. The Institutes present were the Åbo Academy Institute of Human Rights (Turku), the Danish Institute of Human Rights (Copenhagen), the Icelandic Center for Human Rights (Reykjavik), the Norwegian Center of Human Rights (Oslo) and the Raoul Wallenberg Institute of Human Rights and Humanitarian Law (Lund). Observers from the Ministries of Foreign Affairs of Denmark, Finland, Iceland, Norway and Sweden took part in the discussions. A list of participants is produced in annex I to this report.

2. The meeting was held in the context of the ongoing debate on reform in the United Nations, with a focus on human rights. Background documentation included the UN High-Level Panel Report to the Secretary-General, the SG's reform report, his public statements on reform, and the letter by the Nordic Foreign Ministers in response to the High-Level Panel Report.

3. Each Institute introduced and reported on one of the agenda items: monitoring procedures and methods; institutional reform and the links between treaty bodies and other monitoring instances, as well as the mainstreaming of human rights throughout the UN system; and the rights-based approach in development cooperation and beyond. This short report reproduces the highlights of the discussions.

I. Methods of Monitoring

4. First and foremost, the reform must not undermine the existing human rights treaty framework. Unnecessary duplication with the treaty system must be avoided, as well as any steps that in practice might risk the independence, integrity and/or resources of the treaty bodies. The use of, access to and services for individual complaints, the monitoring mechanisms of periodic State reporting, inter-State complaints, inquiry procedures (CAT and CEDAW) and country visits (CAT-OP) should be strengthened through appropriate practical measures. Discussions on better coordination, or even consolidation, between reports by the same State party (preparation, submission, scheduling for consideration, and actual consideration) should be continued, ensuring at the same time that the modified reporting procedures remain compatible with the provisions of the treaties.

5. The reform must also not ignore or undo the progress achieved by the Commission on Human Rights (CHR), in particular through its special procedures which rely on the appointments and operations of independent experts. In general, the track record and many achievements of the CHR should be appreciated.[1] In order to maintain the independence and expertise of appointees (extending not only to Special Rapporteurs and working groups but also to members of treaty bodies and the Sub-Commission), it was suggested that an NGO or an academic institution should independently monitor the qualifications of nominated and appointed experts.

6. The idea of ‘peer review’ on the human rights records of States by the CHR (or by a new Council, see below) deserves serious consideration, but it must be further elaborated and it must be compatible with the points of view elaborated in paragraphs 4 and 5 above. One option is to establish criteria for making a peer review of a country. These criteria could encompass situations when a State has ratified few or none of the main human rights treaties (review would only take place in respect of non-ratified treaties); when a State has seriously fallen behind in the submission of reports; and when urgent cases of ongoing or imminent grave violations arise with prevention in mind. The meeting of chairpersons of treaty bodies could also be enabled to refer countries to the CHR/Council when a compilation of concluding observations and recommendations from country examinations or individual communications reveals a pattern of grave and systematic violations.

7. Another option is to undertake a peer review of all States, not for evaluation, but for implementation, thus fixing an obvious gap in the existing UN human rights program. This would be in line with the strategic assessment that the program is moving from standard-setting to national enforcement as well as international monitoring on the basis of existing legal obligations. Peer review should be implementation-oriented with a systematic, non-selective and unconditional basis in the findings made in respect of each State by the treaty bodies and through the special procedures. Peer review should not make a second substantive assessment of compliance or non-compliance but focus on the measures taken by a State to implement the findings of treaty bodies or special procedures. The institutional arrangements in place in a State, including independent national institutions, as well as the practical implementation of specific findings by treaty bodies and special procedures could also be examined and encouraged through peer review. The CHR/ Council would thus provide political backing for the monitoring bodies by placing political pressure on governments that ignore or challenge the findings of treaty bodies or special procedures.

8. Practical measures should be taken to ensure that all the human rights bodies or mechanisms are aware of what the other bodies or mechanisms are doing. There is a need for more cooperation among and between the treaty bodies and the special procedures. As the documentation is available on the Internet, one must secure the professionalism of treaty body members, other independent experts and staff members responsible for servicing these instances from the Office of the High Commissioner for Human Rights (OHCHR). Treaty body members and other independent experts should have access to the Intranet of the OHCHR. In addition, the search functions of the OHCHR website should be significantly improved.

9. The Nordic countries and other Western States should not shy away from criticism of their own performance. For example, the incorporation of the main human rights treaties into national law and follow-up to the concluding observations of the treaty bodies should be given significantly more official and public attention. Politicians and officials must learn to appreciate that, no matter how unpopular at home, this type of open debate is a price one has to pay for being able to discuss the human rights across borders. It is what universality is all about. It was suggested that listening more attentively to each other, engaging in more dialogues, finding areas of common ground and identifying and learning from positive experiences would be beneficial additions to the monitoring work.

II. Institutional Reform, Institutional Links and Mainstreaming

10. Beyond addressing procedural issues, such as an expanded core document and harmonized reporting guidelines, the annual inter-committee meetings and meetings of chairpersons should be held more often in order to further harmonize work and to focus to a larger extent on material issues, such as current trends and patterns of violations in specific countries and/or regions. The meetings of chairpersons could create a ‘genocide alert function’ as well as early warning and urgent action procedures. These meetings could also develop joint general recommendations between two or more treaty bodies. For example, it was said that the CERD, CEDAW, HRC and CESCR could produce a joint general recommendation on the rights and non-discrimination of indigenous women.

11. Communication and information sharing between the treaty bodies and special procedures should be enhanced. By systematically summarizing reports and activities undertaken, better coordination would be achieved. Recommendations from treaty bodies and special procedures, especially from country visits, should always be subject to joint follow-up. Information regarding forthcoming country visits by special procedures and scheduled examination of country reports by treaty bodies should be distributed, thematic cooperation should be developed, and special procedures should be involved in the drafting of general comments.

12. The mainstreaming or the integration of human rights throughout the UN system was enthusiastically endorsed. Human rights work should not be left alone in a Geneva corner. Organs and specialized agencies of the United Nations dealing with, for example, peace and security, women, economic and financial cooperation, development, the environment, food, health, labour, education, science and technology, and humanitarian assistance, should all be seized with human rights. In addition to primary involvement, these organs and agencies should, whenever relevant and feasible, assist in follow up activities to ensure the implementation of concluding observations and recommendations. The compilation of concluding observations and recommendations should be an integral part of country profiles developed by UN organs and agencies. The compilation should be a core document when the UN negotiates with a government. Mainstreaming in general and all of these and other steps in particular require thorough and system-wide human rights training of staff.

13. While wanting to seize the moment offered by the current overall reform debate, meeting participants identified a number of pros and cons relating to the proposed Human Rights Council. Higher-level representation and a higher profile of human rights in a standing body with more available meeting time were considered positive steps. Questions of concern included participation by NGOs if the Council were not to come under ECOSOC, as well as the participation of national institutions, and the futility of institutional changes without addressing the underlying substantive causes of division. Universal membership in the CHR/Council was seen as enabling States to avoid costly lobbying for membership as well as avoiding the concentration of bad guys, but worries concerning large and cumbersome meetings and the burden on very small States were also brought up. Changes without amendments to the UN Charter were generally favored.

14. The most valuable contribution of the OHCHR was seen as servicing the monitoring procedures as well as the relevant meetings. This should be the main role of the Office, as other actors cannot duplicate it with the same access and authority. The Office should play a large part in the above-mentioned dissemination of information in-house and the coordination between treaty bodies and the special procedures, in terms of case-law, concluding observations, general recommendations and other materials. The Office should also significantly contribute to the effective mainstreaming of human rights in the UN system. In these respects, the increased need for competent and well-trained OHCHR staff was underlined.

15. It was agreed that there is a need for an ambitious and far-reaching vision in the overall framework of international human rights monitoring, with continuing emphasis on the work of independent experts. The idea of a World Human Rights Court should not be simply dismissed as ‘unrealistic’. A mere discussion on such a long-term prospect may prove conducive for gaining momentum for changes that increase the quality and efficiency of monitoring. Among the issues that may be raised is the relationship between such a Court and the existing treaty bodies (with a Court functioning as an appeals body); the relationship of such a Court to the regional human rights courts; the possibility of extending the jurisdiction of a Court to entities other than States when their conduct amounts to human rights violations; etc..

III. A Rights-Based Approach

16. The emphasis set forth by the High-Level Panel and the Secretary General about giving priority to the achievement of freedom from want was underlined. It is important to give due attention in the present reform efforts to this freedom, taking into account that it was one of four freedoms which provided the early inspiration for the elaboration of international human rights.

17. Support was also expressed for the proposal that developing countries, particularly those in extreme poverty, should urgently adopt and begin to implement national development strategies bold enough to meet the MDG targets for 2015. This should be a human rights-based strategy for development that third States should also pursue. The strategies should take into account recommendations made by international human rights bodies in key sectors such as gender equality, health systems, education, food and housing, as well as science, technology and innovation. It is essential that global development assistance is tailored to human rights based development and that it must at least be doubled over the next few years by meeting pledges already made but not fulfilled,

18. The pursuit of a human rights-based development very much requires a better understanding of its content and the way in which it can be implemented. The meeting received with appreciation a paper with a set of ten propositions on this matter prepared by Asbjørn Eide of the Norwegian Center for Human Rights. In view of the complexities and the importance of the topic, this paper is reproduced as annex II to this report.

IV. Closing Remarks

19. This report was written by Gudmundur Alfredsson, Asbjörn Eide, Gudrun Gudmundsdottir, Morten Kjaerum and Martin Scheinin. It was circulated for approval amongst the Nordic Human Rights Institutes and for comments to the observers from the five Foreign Ministries of the Nordic countries.

Annex I. List of Participants:

Anders Rönquist, Swedish Ministry of Foreign Affairs

Asbjorn Eide, Norwegian Center for Human Rights

Christina Johnsson, Raoul Wallenberg Institute

Göran Melander, Raoul Wallenberg Institute

Gudmundur Alfredsson, Raoul Wallenberg Institute

Gudrun Gudmundsdottir, Icelandic Center for Human Rights

Ineta Ziemele, Raoul Wallenberg Institute

Ingibjorg Davidsdottir, Icelandic Ministry of Foreign Affairs

Jan Helgesen, Norwegian Center for Human Rights

Jens Færkel, Danish Ministry of Foreign Affairs

Martin Scheinin, Åbo Academy Institute of Human Rights

Miko Lempinen, Åbo Academy Institute of Human Rights

Morten Kjaerum, Danish Institute of Human Rights

Nikulas Hannigan, Icelandic Ministry of Foreign Affairs

Petter Wille, Norwegian Ministry of Foreign Affairs

Satu Suikkari, Finnish Ministry of Foreign Affairs

Annex II: Ten Propositions on Human Rights-Based Development in General and the Role of Development Agencies Therein, a paper by Asbjörn Eide:

Proposition 1: From neglect to rhetoric – but not much rights-based action

The human rights-based approach to development was largely neglected in development thinking until the second part of the 1990s
It has since got increasing attention, but more on the rhetorical level than in practical implementation in development polices
Commitment to rights-based development is expressed in important documents particularly of Nordic, British , Dutch and German development ministries and agencies
But the operationalisation of a rights-based approach tends to disappear or become very vague in the body of the same reports
This is not surprising: A problem of disparate values and interests in economics, politics and human rights law, nationally and internationally

Proposition 2: Agents.

A human rights-based approach cannot be driven solely by donors or development agencies
The primary responsibility must be borne by the recipient country. A human rights-based approach must not only be internalised and grudgingly accepted, but preferably be self-generated within the (recipient) nation itself
The potential role of the international civil society is substantial but must be better clarified; it is a multi-headed phenomenon
The multinational corporations have an ambiguous role in the process
There is uncertainty with whom the international financial institutions identify with or serve – the corporations, the rich countries, or the developing countries. If mixed, whose interests are given the greatest attention?

Proposition 2: Distinctions.

Distinction 1: Rights-based development is different from needs-based development. (Needs are met, if at all, by charity, which is a marginal supplement to enrichment in centres of growth and global processes of accumulation; rights are entitlements which can be claimed and have to be met by somebody who have a duty towards the rights-holder)

Distinction 2. Human rights-based development is more than and often quite different from ‘simple’ rights-based development. ‘Rights’ can cover any kind of rights and are locally determined as a result of power relations; rights can include established property rights irrespective of whether their origin, use or inheritance principles are ‘just’; human rights-based development builds on the international normative system of rights and the obligations undertaken by (most) states, which makes possible a growing international consensus on the content of the rights and the corresponding responsibility of the duty-holders

Distinction 3. A human rights-based approach to development is different both from state-centric economic command system, even when the aim is protective and intended to eliminate social inequality, and from neo-liberal economic ideology, even if the aim is liberative and intended to assert the freedom to choose. Human rights are both protective (by the state and its agencies) and liberative (from the state and its agencies), and a core function is to facilitate empowerment of those who are otherwise weak, to make them able to participate effectively and thereby promote a well-functioning society

Proposition 3: Indivisibility

A human rights-based approach places in general civil, political, economic, social and cultural rights on the same level
And yet, priorities at particular points in time and in particular countries have to depend on which set of rights are most neglected then and there

Proposition 4: Foundations in international law

Foundations in international law for a human rights-based approach is found in the UN Charter (Articles 1 and 55/56)

The UDHR (Article 1 and 28 combined with preambular paragraph 2, second period)
The Declaration on Social Development (1969)
The Declaration on the Right to Development
The Vienna Declaration
The Millennium Declaration (imperfectly rendered in the Millennium Development Goals)
And given legal detail in ICCPR, ICECR, ICERD, ICEDAW and CRC – among others

Proposition 5: Availability of strategies for rights-based development

Components of the necessary strategies have increasingly been elaborated by human rights treaty bodies in their general comments. Many of them explicitly require states to adopt sectoral strategies (in food, health, housing, education and other areas by the CESCR; many of the general comments of the Human Rights Committee, CEDAW and the CRC Committee are also building blocks for a comprehensive human rights-based approach to development)

Proposition 6: On values.

A human rights-based approach to development is not a matter of ‘value added’ to traditional development policies; it is not about doing slightly better ‘what we always have done’
It requires a basic value change in conceptualizing and prioritizing development. It requires attention both to process and to outcomes
The process requires broad participation in development particularly for those who most need the development; freedom of expression and information, freedom of assembly and association, effective participation by those affected, attention to minority rights and to those of indigenous peoples, freedom in the choice of work or other income-generating activity
It requires attention to outcomes, particularly for those who do not have social security, who presently live below the level of adequate standard of living, who do not have satisfactory access to health or to education. This requires preset benchmarks, monitoring at national and international level, advance identification of those responsible for ensuring that process is respected and the benchmarks are achieved, and effective remedies when these responsibilities are not met
It requires, in particular, the need to avoid negative outcomes in the sense of poverty production (impoverishment)
Much of what passes as ‘poverty reduction strategies’ do not meet these criteria

Proposition 7: Still absent: Value consensus

A full-fledged human rights-based approach by development agencies would require a broad value consensus between donors and recipients
It also requires consensus between the different donors
As of today, there are only fragments of such consensus

Proposition 8: Testing commitment to human rights-based development

Several ongoing activities within human rights bodies can be used to test states’ commitment or non-commitment to a human rights based development

Example 1: The attitudes of different states to the adoption of an optional protocol making possible complaints against violations of human rights
Example 2: The attitudes of different states to the voluntary guidelines on the implementation of the right to food
Example 3: The attitudes to various general comments of the Committee on Economic, Social and Cultural Rights, such as the right to water
Example 4: The attitudes towards international obligations for human rights

Proposition 9: Desirable, possible but not yet probable

Increasing attention to a human rights-based approach is desirable

It is also possible,

Doubts persist whether it is probable.

It is unfair by agents of the rich countries to demand a rights-based approach by the governments of the poor countries, when the international economic system is structured in a way which gives highly unequal benefits to the rich and the poor, and the rich countries to not seem to want to do anything meaningful to change that.

Proposition 10: Broadening an overlapping consensus is possible

Deepgoing value changes are unlikely, because different actors have different interests
But a broadening of an overlapping consensus is possible when different interests can be promoted by the same policies
A historical example in economics: The Keynesian theory (The General Theory of Employment, Interest and Money, 1936), reconciling labour and capital interests and fundamentally changing (for some time) social and economic thinking
Can a broader overlapping consensus be achieved between private capital interests, public goods (education, health and at least partly social security) and fullest possible employment or income generation for all, facilitated by state intervention and recognition of international obligations?

[1] For a systematic and valuable examination of the track record of the CHR in respect of country situations, see a new doctoral dissertation: Miko Lempinen, The United Nations Commission on Human Rights and the Different Treatment of Governments. An Inseparable Part of Promoting and Encouraging Respect for Human Rights?, Åbo Akademi University Press, 2005.